Introduction
According to the principles of Law of Torts, whenever any individual does such an act that causes any injury or harm to another, he is liable to pay the damages in the form of compensation or any other remedy as is decided by the court.
There are certain instances where the remedy is not available to the plaintiff even when he has suffered the injury or loss by an act of the defendant. It is so because there are certain defenses available to the plaintiff such as Act of God, Act of private defense, inevitable accident, Act out of Necessity, Statutory Authority, and volenti non fit injuria, among others. In this particular article, we will discuss in detail about the defense of violent non fit injuria and its exceptions.
What is volenti non fit injuria?
Every person has a duty of care towards others to avoid any foreseeable damages that may be caused due to the failure of adhering to such duty of care. A driver has a duty to drive within the prescribed speed limit. If the driver acts negligently and crosses the speed limit and due to the negligent driving ends up injuring a pedestrian, he will be liable to pay the damages as decided by the court to the injured person. But this is the time where defenses come into play and by using them defendant can escape his liability of paying the damages. One such defense is volenti non fit injuria.
The literal meaning of the principle of volenti non fit injuria is that to the willing person, no injury is done. According to this doctrine, any person who voluntarily gives his consent to suffer an injury or harm, cannot later claim any damages for such harm suffered. For Salmond, any person who has voluntarily waived or abandoned his rights cannot further have any claim over it.[1]
In the case of Hall v. Brooklands Auto Racing Club, there was a motor car race being held at Brooklands on a track which was owned by the defendant and the plaintiff was a spectator. In the course of the race, there was a collision between two cars, and one of the cars was thrown among the spectators due to which the plaintiff was injured. When the matter was taken to the court, it was held that there was an inherent danger in the sport and the plaintiff took the risk even after knowing it. Therefore, the defendant was held not liable.[2]
In Padmavati v. Dugganaika, two strangers took a lift in the defendant’s jeep. Suddenly, one of the bolts in the right front wheel gave away toppling the jeep resulting in the injuries to the two strangers and one of them died. It was held that the defendant was not liable as it qualified as an accident and thatthey had voluntarily taken the lift. [3]
In these cases, the consent of the plaintiff can be either expressed or implied. It can be impliedly taken through his conduct. For example, when we submit ourselves to the doctor for surgery, we are expressly giving our consent to the doctor to perform the surgery with risks involved. Whereas, if we are hurt by the ball while watching a cricket match, we cannot hold the batsman liable because we have impliedly consented to the risks involved by purchasing the ticket.
Exceptions
However, this defenseis not absolute and comes with some limitations and exceptions.
Consent must be free:
This defense will not be applicable in cases where the consent of the plaintiff has been obtained by unlawful means such as fraud or compulsion. The defendant will not be able to take this defense and escape from the liability arising out of such activities. Consent by illegal means is not real consent. The act done by the defendant must be the same for which the consent was given.
In the case of Lakshmi Rajan v. Malar Hospital Ltd., a woman aged 40 years had developed a tumour in her breast. She went to the hospital to get it surgically removed. She gave her consent for the removal of the tumour which had nothing to do with the uterus. But during the surgery, the doctor removed her uterus without any justification. The hospital was held liable as the act done was not the same for which the consent was given.[4]
In the case of R. v. Williams, a music teacher persuaded his minor student for sexual intercourse by saying that this act was a method to improve her voice. He was held liable for rape by the court because the consent was obtained by fraud and therefore it was not real consent.[5]
In another case ofBowater v. Rowley Regis Corporation, theplaintiff was a cart driver employed under the Municipal Corporation to go around the streets and collect road sweepings. The plaintiff was ordered by his employer to drive a horse which they both knew to be unruly and had run away on two occasions. Plaintiff protested but was ultimately ordered to drive the horse. He obeyed the order and took out the horse. But the horse bolted and he was injured thereby. When the matter was taken to the court, it was held that the defense of violent non fit injuria is not applicable as the consent obtained was under the compulsion to do the duty and the defendant was liable.[6]
Rescue Cases:
Rescue cases form an important exception to the doctrine of volenti non fit injuria. When the plaintiff voluntarily takes the risk of rescuing someone from imminent danger created by the wrongful and negligent act of the defendant, the rescuer has the right to remedy and this defense will not be available to the defendant.
The case of Haynes v. Harwood is an important authority that describes this situation. In this case, a two-horse van was left unattended by the defendants’ servant in a street where some children were playing. One of them threw a stone on the horses due to which they bolted resulting in grave danger to the women and children nearby. Seeing this, a police constable managed to bring the horses in control but suffered some serious injuries in the process. The court held the defendant liable as they could not take the defense of volenti non fit injuria. In the words of Williamer L.J., “It seems to me that when once it is determined that the act of the rescuer was the natural and probable consequence of the defendant’s wrong, there is no longer any room for the application of the maxim ‘volenti non fit injuria. It would certainly be a strange result if the law were held to penalize to the courage of the rescuer by depriving him any remedy.”[7]
Nonetheless, if a person gets injured while trying to stop a horse which creates no danger, he will not get any remedy if he is injured in the process.
Negligence of the defendant:
This defense is not available where the plaintiff has been injured due to the negligence of the defendant. For the defense to be available to the defendant, the act must be the same for which the consent has been given by the plaintiff. When the plaintiff consents to take some risk, it is presumed that there will be no negligence on part of the defendant.
The above point is clearly illustrated by the case of Slater v. Clay Cross Co. Ltd. In this case, the plaintiff, a lady, was injured by a train driver while she was walking along a narrow tunnel which was owned by the defendant. The company had already instructed its drivers to whistle and slow down while entering the tunnel. But the driver ignored the instructions and drove negligently due to which the plaintiff was injured. The court neglected the defendant’s stand of volenti non fit injuria and held that even though the lady took the risk of walking along the tunnel, it was because of drivers negligence she got injured. Therefore, the company was held liable. When the plaintiff consents to take some risk, there is a common presumption that the defendant will not be negligent, and if he is, the defense of volenti non fit injuria cannot be taken.[8]
Conclusion
The defendant takes the defense of volenti non fit injuria where the plaintiff voluntarily gives his consent to do such an act and thereby gets injured. Thus, he has no remedy in law for such an injury. But this defense is not absolute and subject to some limitations and exceptions such as rescue cases, negligence of the defendant where the defendant is held liable even after the consent of the plaintiff.
By-
Abhishek Kumar
Banaras Hindu University, Varanasi
References:-
[1]. Salmond, Torts, 14th Ed.., p. 47
[2]. Hall v. Brookland auto racing club (1932) ALL ER 208
[3]. 1975, A.C.J. 222
[4]. III (1998) CPJ 586(Tamil Nadu SCDRC).
[5]. R v. Williams (1923) 1 K.B. 340
[6]. Bowater v. Rowley Regis Corporation (1944) K.B. 476
[7]. Haynes v. Harwood (1935) 1 K.B. 146
[8]. Slater v. Clay Cross Co. Ltd. (1956) 2 ALL E.R. 625